In this action brought in the Superior Court of Baltimore City by a railroad employee against the employer under the provisions of the Federal Employers' Liability Act for injuries sustained by the employee as a result of having fallen into an elevator shaft, the questions on appeal relate to the sufficiency of the evidence as to employer negligence and the correctness of court instructions that required the jury to use a measure of speculation or conjecture in arriving at its verdict.

Lester Davis, employed by the Baltimore and Ohio Railroad Company (B. & O. or railroad company) as a tallyman and trucker, was assigned to handle freight in an enclosed two floor pier at the Locust Point terminal in Baltimore City. The pier, which extends in a north-south direction with the shore end facing toward the south, is divided on each floor by a fire wall between its east and west sides. In that area of the pier between the fire wall and the shore (the part of the pier with which we are concerned) there are four elevators, two on the east side directly opposite two on the west side. The elevators on the east side of the pier, as well as those on the west side, are approximately one hundred feet apart, one being located toward the fire wall (or north) and the other toward the shore (or south). The elevators are not built against the walls, and each can be entered from either its east or west gate. There is an aisle or passageway on each side of the pier between the outside walls and the elevators.

At the time of the accident, stacks of palletized sugar approximately five feet high were arranged in the center of the second floor extending from the two northern elevators to a point even with the two southern elevators (hereinafter referred to separately as the shore-end east elevator and the shoreend west elevator and collectively as the shore-end elevators).

According to Davis, his foreman told him to bring certain boxes of merchandise from the second floor of the pier to the first. While on the second floor searching for the boxes of merchandise, he walked to the vicinity of the shore-end east elevator and stopped to examine the list of merchandise he was using. The elevator was then on the first floor, but the west gate guarding the elevator shaft was propped six or seven feet above the floor by a board. As he was facing east toward the elevator looking at a box, a fork lift tractor struck him in the back. He slid across the floor on his abdomen and fell into the elevator shaft and landed on his shoulder or side on top of the elevator, and the tractor landed beside him with its blades pointing upwards. Davis further testified that he knew the B. & O. employee, who had been operating a tractor on the second floor on the date of the accident, but did not identify him or anyone else as its operator at the time he said it struck him. Although Davis stated that he had never operated a tractor, his employment was terminated about three weeks later for the unauthorized use of a tractor on January 2, 1959, the date of the accident.

A longshoreman (Leroy Walden), testifying on behalf of Davis, stated that he had been on the second floor of the pier at the time of the accident. As he was walking south in the aisle on the east side of the pier and had gotten about half way between the two east-side elevators, he noticed a man standing with a piece of paper in his hands facing the east gate of the shore-end east elevator. (Note that Davis, by testifying that he was facing east, put himself in the position of facing the west propped up gate.) Walden glanced away, and "all at once" or "just a second later," he heard an impact and someone scream. He went to the elevator shaft and saw Davis and the tractor (with its blades upwards) on top of the elevator. The east gate of the elevator was broken. He did not know where the men who helped Davis out of the shaft had come from and had not seen the tractor at any time until his arrival at the shaft after the accident. But he stated that just before he got to the elevator, after hearing the impact, he saw a man walking away "fast" from the other side (apparently meaning the west side) of the elevator toward the shore-end of the pier. He

saw the man's back, not his face, and knew only that he was tall, heavy set and was wearing a blue coat. He was "pretty sure" that the man was not a longshoreman and "almost sure" that he was a B. & O. employee. When asked whether or not he had seen this man jump off the tractor, he replied that he did not know where the tractor had come from or who was operating it, and that he did not see the man jump off it.

The railroad company produced as a witness the regular operator (Arthur Brown), who had been operating the tractor on the day of the accident. He testified that immediately before the occurrence he had parked the tractor to the south of the shore-end east elevator in order to go to the lavatory. While in the washroom, he heard a noise, came out, and found the tractor in an elevator shaft on the west of the pier. (Since all other witnesses designated the shore-end east elevator as the place of the accident, it may be that Brown meant to say that he had parked the tractor beside the shore-end west elevator and had found it in the elevator shaft of the shore-end east elevator.) Brown also stated that sugar was stacked between the two shore-end elevators.

Another B. & O. employee (Robert Byrd) testified that there were no stacks of sugar between the shore-end elevators and that at the time of the accident he was standing between them; that the tractor was parked beside the shore-end west elevator; and that he saw Davis get on the tractor and back it across the pier through the wooden ...

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